Elder Abuse Under Penal Code 368 Defined

Elder abuse comes in many forms and can be perpetrated by family members, friends, caretakers or nursing home facilities. It is usually physical but emotional and financial abuse or exploitation is just as harmful if not more devastating.

The main feature of this crime is that the victim must be at least 65 years of age. Because senior citizens are particularly vulnerable to harmful or offensive acts by others, and are helpless or unaware of how to report criminal conduct, Penal Code 368 was promulgated to offer special protection and severe penalties for those who commit such crimes against the elderly.

Elder abuse is a “wobbler” offense so that the DA has the discretion to charge a defendant with a misdemeanor or felony.

What Constitutes Elder Abuse?

Physical abuse including any kind of physical injuries or sexual abuse, neglect or abandonment

Emotional abuse such as bullying, making threats of physical harm or comments that are belittling, degrading, racist or otherwise offensive

Financial abuse or theft or fraud in stealing or gaining access to assets

Elements of Elder Abuse

Every criminal offense has certain elements, each one of which requires the prosecution or DA to prove beyond a reasonable doubt. These elements are different depending on whether your actions constituted a misdemeanor or a felony.

Felony Elder Abuse Elements

You intentionally or willfully1, or with criminal negligence2, personally subjected the elder or dependant adult to unjustifiable physical pain or mental suffering or permitted another person to do so

You knew, or reasonably should have known, that the victim was 65 years of age or older

Misdemeanor Elder Abuse Elements

You intentionally or willfully, or with criminal negligence3, personally subjected the senior to unjustifiable physical pain or mental suffering or permitted another person to do so

You knew, or reasonably should have known, that the victim was 65 years of age or older

You had a legal duty or obligation to take care of the elderly victim

You exhibited conduct that may have endangered the life or health of the senior or elder

Criminal Negligence

Criminal negligence is more than ordinary negligence where a person fails to exercise due care or that care or conduct that a reasonably cautious person would have exercised under similar conditions. Criminal negligence is behavior that is callous or so unreasonable as to reflect a disregard for human life.

An example is neglecting someone you are caring for and who is dependent on you for their basic needs by deliberately not giving them food, medications or treating their sores or open wounds so that they become seriously dehydrated or contract a life threatening disease or infection.

Unjustifiable Physical Pain or Mental Suffering

This refers to pain or mental anguish or suffering that is unnecessarily inflicted or which is extreme4.

Likely to Cause Great Bodily Harm—Felony Elder Abuse

This element is satisfied if the elder is placed in a condition or circumstance that is likely to cause or does cause great bodily harm. It is not necessary for the elder to have suffered physical pain for the defendant to be found guilty of felony elder abuse5. If you willfully withhold food and water or necessary medication, you have committed an act that likely would have led to great bodily harm.

Penalties and Sentencing for Elder Abuse

Largely depends on the facts and circumstances of each case or if the conduct that caused the suffering was especially egregious or callous as well a consideration of your criminal history. In addition to criminal penalties, restitution to the victim for medical or other expenses incurred as a result of the harm may be required.

Penalties

Misdemeanor

Felony

Fine

Up to $1,000

Up to $10,000

Mandatory Court Approved Program

Yes

Yes

Probation

Summary Probation

Formal Probation

Strike on your record

No

Yes if great bodily injury or death occurred adding 3-7 years of state prison6

Jail or Prison

Up to 1 year in county jail

2-4 years of state prison

Legal Defenses

There are legal defenses to elder abuse that a defense attorney can utilize in your defense, including challenging each element of the crime. A common defense in these cases is that of being falsely accused:

False Accusations

Health care providers, law enforcement and social workers are required by law to report suspected instances of child and elder abuse or face misdemeanor charges if they fail to do so. Often, these individuals make reports if they observe any signs of injury, deep depression, cryptic comments made by the senior or if they feel the senior has been neglected or mistreated in some fashion. It is not uncommon for these suspicions to be unfounded or unsupported. Financial exploitation or wrongdoing might be alleged if the elderly person gives a caretaker money or buys gifts for them. While the caretaker should consider the ethics or the appearance of impropriety in accepting money or gifts, it is not a crime unless there is evidence of coercion, threats or physical violence that forced the senior to give these gifts or largesse.

Lack Of Willful Intent

You must have exhibited willfulness or an intent to cause harm. If the injury was an accident, there is no violation of PC 368. Sometimes a nursing staff employee had looked away for a moment and the senior resident had fallen or broken a hip or limb. Without more, the employee would likely not be charged.

Lack Of Evidence

The DA must prove there was either an injury or that you placed the elderly person in a dangerous position or condition that was likely to lead to great bodily harm. Merely because an injury occurred and you were the caretaker is not enough to convict you. If the victim has dementia or some other mental illness and is unable to corroborate the DA’s accusations or lacks credibility, then there must be proof that the person was poisoned, not given the required medication for long periods of time, was malnourished or dehydrated or had open wounds or sores too obvious to have ignored. Otherwise, the ravages of age, illness or an accident were just as likely to have caused the condition.

Evidence that you did care for the person would counter any circumstantial evidence. This might include records that you took the person to medical visits, recreational activities, for walks, and can produce receipts for meals and medications and any other evidence of adequate care.

Record Expungement For Elder Abuse

California law allows for the expungement of certain criminal convictions so that the restrictions and obstacles faced by ex-felons in searching for and obtaining jobs, housing and public benefits are removed. Not all civil rights are restored by an expungement, however.

Under PC 1203.4, any individuals convicted of a felony are ineligible for an expungement if they served time in state prison. There are many instances in which a felony conviction does not result in your serving time in state prison such as being sentenced to probation and/or some time in county jail, community service or home monitoring. Some felonies do allow all of the time served to be in county jail instead of state prison.

If convicted of elder abuse, your conviction was either a felony or a misdemeanor. If a misdemeanor, you were not sentenced to state prison so your conviction qualifies for expungement. If you were convicted of felony elder abuse, you can still qualify so long as you did not serve any state prison time.

There are some limits on what a felony record expungement can do. For example, an expungement does not completely erase your conviction so that if you do reoffend, it can be used as a prior offense to enhance any sentence you receive for the new felony offense. However, no member of the general public, including private employers and individuals, can see your record of conviction if they perform a criminal background check.

You do have to disclose your conviction, along with the fact that it was expunged, under the following circumstances:

When you apply for a professional license or for public sector employment

If you wish to run for public office

When applying for a license or contract with the State Lottery Commission

If convicted under PC 368, you may still qualify for expungement provided you meet the following:

You were sentenced to formal probation and/or served no state prison time

Your time was served in county jail

All conditions of your sentence and probation have been completed

No new felony offenses have been committed

No criminal charges are pending

No probation violations

A probation violation, does not mean that you are no longer eligible if the violation was for a minor offense. The court will review your criminal history and your need for the expungement to help you find suitable employment and to support yourself and family.

That your felony conviction be reduced to a misdemeanor if the offense was a wobbler pursuant to PC 17(b)(3).

PC 368 is a wobbler meaning there were circumstances for which you were convicted as a felon for causing or putting the victim at risk for great bodily harm. Having the offense reduced to a misdemeanor will restore your right to own a firearm and will also make it easier for you to obtain a professional or public license. You need not disclose the expunged conviction if it was a misdemeanor, rather than a felony, on other matters, such as applying to run for public office or for public employment.

Also, you can still file the Petition for Dismissal even if you have to wait after serving the total term of your probation and your conviction is not reduced to a misdemeanor.

Related Offenses

Battery is offensive touching as well as any unlawful infliction of force or use of violence on another person. Caretakers who slap or punch an elder, choke them or push them down can be charged with both elder abuse and battery. If the injury is minor, then the charge is a misdemeanor and you face a county jail sentence of no more than 6 months and/or a fine up to $2000.

If serious injury does occur, such as a broken bone or scarring, then the offense is a wobbler. If a misdemeanor, you could be sentenced for up to one year in county jail and a fine up to $2000. As a felony, you could face a potential sentence of up to 4 years in state prison.

Rape by caretakers or at nursing home facilities does occur since the elderly are too fragile, immobilized or frightened to report it. Signs of rape are bruising and wounds in the genital area among others. Any nonconsensual sexual intercourse that is achieved by force, threats, physical violence or even fraud is a crime under PC 261. Rape is a felony with state prison time of 3, 6 or 8 years that would be imposed in addition to a sentence for elder abuse.

Lewd or Lascivious Acts—PC 288(2)

A caretaker who cares for a dependent person or an individual who has diminished physical or mental disabilities due to age, and who engages in any kind of sexual act other than intercourse, such as fondling or touching the genitals or other intimate parts of the dependent person without consent, is guilty under PC 288(2) for committing lewd or lascivious acts. It is a felony that carries state prison time of 5, 8 or 10 years if force, threat, menace, violence or fear of imminent bodily injury are factors.

Caretakers are known to threaten the persons entrusted to their care out of frustration or because of mistreatment by the elderly person. It is crime to threaten a senior, to instill fear of physical violence and to carry out the threat. It is a wobbler offense so that If convicted, you face up to a year in county jail if a misdemeanor or state prison time of up to 4 years and a strike on your record if convicted of a felony.

These laws apply if the elderly victim is a spouse, ex-spouse, roommate, parent or grandparent, dating partner or former dating partner. These can be charged as misdemeanors or felonies. Most courts will impose a minimum 30-day jail sentence for misdemeanors. Felony sentences can be 2, 3 or 4 years under PC 273.5 and up to one year under PC 243(e)(1), a misdemeanor.

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Footnotes

Willfully Deﬁned. Pen. Code, § 7, subd. 1; The word “willfully,” when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage. see People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402]; People v. Vargas (1988) 204 Cal.App.3d 1455, 1462, 1468–1469 [251 Cal.Rptr. 904] [↩]

“Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when: 1. He or she acts in a reckless way that creates a high risk of death or great bodily harm; AND 2. A reasonable person would have known that acting in that way would create such a risk. In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard or human life or indifference to the consequences of that act” CALCRIM 831.[Criminal Negligence Required for Indirect Conduct. People v. Manis (1992) 10 Cal.App.4th 110, 114 [12 Cal.Rptr.2d 619]; People v. Superior Court (Holvey) (1988) 205 Cal.App.3d 51, 60 [252 Cal.Rptr. 335]; see >People v. Valdez (2002) 27 Cal.4th 778, 788, 789 [118 Cal.Rptr.2d 3, 42 P.3d 511]; People v. Peabody (1975) 46 Cal.App.3d 43, 47, 48–49 [119 Cal.Rptr. 780] [↩]

Unjustiﬁable physical pain or mental suffering is pain or suffering that is not reasonably necessary or is excessive under the circumstances. CALCRIM 831 (2017 [↩]

“PC 368 is patterned on the felony child abuse statute, PC 273a. The relevant passage of section 273a makes it a felony for a person to harm or endanger a child “under circumstances or conditions likely to produce great bodily harm or death….” (Emphasis added.) “The California Supreme Court has recognized this derivation of PC 368 and has held that it is appropriate to review decisions interpreting PC 273a in addressing issues concerning the scope of PC 368. (People v. Heitzman (94) 9 C4th 189, 204-205.) Courts have held that there is no requirement under PC 273a that the victim actually suffer great bodily injury” [CALJIC 9.38]. (People v. Cortes (99) 71 CA4th 62, 80; see also Roman v. Superior Court (2003) 113 CA4th 27, 34-35. [↩]

Penal Code 368(b)(2) If, in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in Section 12022.7, the defendant shall receive an additional term in the state prison as follows: (A) Three years if the victim is under 70 years of age. (B) Five years if the victim is 70 years of age or older. (3) If, in the commission of an offense described in paragraph (1), the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows: (A) Five years if the victim is under 70 years of age.(B) Seven years if the victim is 70 years of age or older. [↩]